November 13th, 2018

In a somewhat expected ruling, the European Court of Justices has decided that the taste of a food does not meet the criteria for copyright protection.

The case was brought by Levola Hengelo, and was initially filed in the Netherlands before moving the European Court of Justices. Levola Hengelo claimed that another cheese maker, Smilde Foods, replicated and sold their protected cheese, a cream cheese spread made with herbs and spices. Levola demanded Smilde cease the production and sale of the cheese.

A number of characteristics are required to obtain copyright protection, and in this case, the most contested characteristic was the concept of identifiability. The court ruled that precision and objectivity in respect to taste were not possible, as taste is a subjective quality. They went on to explain:

“Unlike, for example, a literary, pictorial, cinematographic or musical work, which is a precise and objective expression, the taste of a food product will be identified essentially on the basis of taste sensations and experiences, which are subjective and variable. They depend on, amongst other things, factors particular to the person tasting the product concerned, such as age, food preferences, and consumption habits, as well as on the environment or context in which the product is consumed.”

The New York Times gave a clear summation: “taste is ‘an idea’ and not an ‘expression of an original intellectual creation.'”

This is a blow to food makers and manufacturers. The ruling indicates that no matter how much effort is put into creating a flavor profile, it can simply be copied with no recourse. And this isn’t the first case to touch on the validity of trademarks in food. In July, BBC News reported on the failed battle for NestlĂ© to trademark the shape of its iconic Kit-Kat Bar.